Volume Seventeen, Number Seven

SHUSTERMAN’S IMMIGRATION UPDATE is the Web’s most popular e-mail immigration newsletter regarding U.S. immigration laws and procedures with over 40,000 subscribers located in more than 150 countries. It is written by a former INS Trial Attorney (1976-82) with over 30 years of experience practicing immigration law.

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Client Reviews

Newsletter US Immigration Update July 2012

TABLE OF CONTENTS:

1. New Deferred Action Policy: What You Need to Know 
2. Supreme Court Strikes Down Parts of Arizona’s Immigration Law 
3. Shusterman’s Immigration Law Seminars
4. CSPA: 9th Circuit Will Decide Whether Immigrant Families Will Be Reunited
5. Success Story: Green Card Granted to Abandoned Spouse
6. Immigration Trivia Quiz: Immigrant Pop Stars
7. State Department Visa Bulletin for July 2012
8. Immigration Government Processing Times
9. Ask Mr. Shusterman: Adjustment of Status vs. Immigrant Visa
10. Winner of Our June 2012 Trivia Quiz!

NEWS FLASHES:

• Asians Pass Hispanics as Fastest Growing Immigrant Group in U.S.  – In their study “The Rise of Asian Americans,” the Pew Research Center reports that Asians have surpassed Hispanics as the largest group of new immigrants in the U.S. In 2010, Asians made up 36% of all new immigrants, while Hispanics made up only 31%. This change may reflect the increase in demand for high-skilled foreign workers.

• Attorney Shusterman’s 1-9 Article Published – Computer Today has published Mr. Shusterman’s article on avoiding I-9 sanctions. Mr. Shusterman was also recently quoted in a similar article published by Hotel Management. For a complete list of Mr. Shusterman’s publications, see his AVVO webpage.

• Bipartisan Bill Introduced to Make EB-5 Visa Program Permanent – On May 24, Sen. Leahy and co-sponsor by Sen. Grassley introduced a bill to permanently reauthorize the EB-5 regional center program (S.3245), set to sunset on September 30. This bill would also permanently reauthorize the E-Verify Program, the Conrad State 30 J-1 Visa Waiver Program for physicians, and the Special Immigrant Non-Minister Religious Worker Program.

• California State Bar Argues in Favor or Granting Undocumented Immigrants Licenses to Practice Law – The California State Bar argued before the California Supreme Court that illegal immigrants who are attorneys should be granted law licenses if they meet all the requirements. The Bar states that this would not give them the right to employment, for which they would still need legal authorization, but would allow them to return home to practice law or to seek permanent residence in the U.S.

• ‘Green Card Stories’ on Sale Now – Green Card Stories depicts the lives of 50 recent green card holders who share a steely resourcefulness and a determination to fulfill their potential in America. The book has already won 5 national awards since its recent publication, and is available for purchase through its web site or at your local book store.

• H-1B Cap Reached – The USCIS started accepting H-1B petitions on April 2, and 10 weeks later,  by June 11, the 65,000 general cap and the 20,000 cap for persons with advanced degree petitions were both reached. Last year, the caps were not reached until late November.  As usual, the lucky 85,000 will get their H-1Bs starting on October 1. Cap-exempt employers can, as usual, sponsor H-1B employees all year long.  For more information, see our H-1B Visa Guide.

• Immigration “How-To” Videos – Our 30 “How-To” Immigration Videos have been viewed more than 300,000 times. Subjects include how to obtain a green card, how to become a U.S. citizen, how to win your case in immigration court and how to select an immigration attorney. Our video “Green Cards through Marriage” has been viewed over 120,000 times. We encourage you to take advantage of this free resource.

• Israeli Citizens May Now Qualify for E-2 Visas – After being passed unanimously by both the House and the Senate, the bill allowing citizens of Israel to qualify for E-2 treaty investor visas was signed into law by President Obama on June 8. The new law adds Israel to the list of almost 80 countries whose citizens may be eligible to apply for this visa. E-2 visas allow foreign nationals to invest in the U.S. economy, spurring economic growth and creating jobs.

• Job Opportunities for Mexican and Canadian RNs – Large U.S. non-proprietary dialysis company, located in 27 states, looking for dialysis nurses under the TN visa sponsorship. Minimum requirement is 2 years hemodialysis experience plus 1 year medical or surgical experience. Location assignment determined upon arrival to US. One month orientation in Nashville, TN. Visa is good for 3 years and may be renewed.  Send inquiries to Christina.ynares@dciinc.org.

• Letter Urges USCIS’s Director Mayorkas to Clarify “Specialized Knowledge” for L-1B Visas – Sens. Grassley and Durbin sent a letter to USCIS’s Director Mayorkas advising him to use a clearer definition of “specialized knowledge” when issuing L-1B visas, such as those used by the State Department and the Administrative Appeals Office. They urged Director Mayorkas, “not to propose changes that would undermine the L visa program” and harm Americans, as some companies may prefer L-1B visas to H-1B visas to avoid certain restrictions.

• Mexico To Centralize E-1 and E-2 Visa Processing – The U.S. Embassy in Mexico announced that they will now review Treaty Trader (E-1) and Treaty Investor (E-2) visas at three processing posts: Mexico City, Monterrey, and Tijuana. Appointments and payments can still be made online or through their call centers, and biometrics can still be done at the Applicant Service Centers.

• Secretary of Labor Signs Migrant Worker Rights Agreements – On June 11, Secretary of Labor Hilda Solis signed partnership agreements with the Ambassadors of Honduras, the Philippines, Peru, and Ecuador regarding the rights of migrant workers. Under these agreements, the consulates of the four countries and two Department of Labor agencies will reach out to migrant workers in high-risk, low-income industries to tell them their rights under U.S. law.

• Sen. Grassley may Lift Hold on Fairness for High-Skilled Immigrants Act – Sen. Grassley is expected to lift his hold on the Senate bill “Fairness for High-Skilled Immigrants Act” (H.R. 3012) due to recent compromises and amendments on the text, such as the use of new H-1B enforcement language. There is now increased likelihood that this bill will be passed, which would eliminate per-country caps on employment-based immigration and increase caps on family-based immigration.

1. New Deferred Action Policy: What You Need to Know

On June 15, the Department of Homeland Security announced that certain individuals who were brought to the United States as children, and meet specific criteria, will be considered for relief from being placed in deportation proceedings and qualify for work permit. This is NOT amnesty and acts as more of a band-aid on a contentious and sensitive issue that can only truly be remedied by comprehensive immigration reform.

DHS Secretary Janet Napolitano writes “This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law.”

So what does this mean for the undocumented immigrant community? This newly-announced policy will act to prevent the deportation or initiation of removal proceedings against certain young people who were brought to this country as children, and who have completed at least high school or obtained a GED certificate.

This policy announcement does not grant any kind of status to eligible individuals. Eligible individuals will be granted “deferred action” which is a temporary reprieve from deportation.  Those granted deferred action may then apply for employment authorization from the USCIS.

The new policy establishes certain criteria for deferred action:

1. The individual must have come to the United States while under the age of 16;
2. He/she must have continually resided in the U.S. for at least 5 years preceding the date of the memorandum (6-15-12) and must be  present in the U.S. on the date of the memo;
3. She/he must currently be in school, have graduated from high school, obtained a general education (GED) certificate, or be an honorably discharged veteran of the Coast Guard or Armed Forces of the United States;
4. The individual cannot have been convicted of a felony offense, significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and
5. The individual must not have reached his/her 31st birthday as of June 15, 2012.

The announcement is essentially the next step following earlier DHS announcements regarding prosecutorial discretion.  In August of 2011, DHS published a memo in which the agency would review deportation cases and grant prosecutorial discretion to “low priority” cases. Since that policy took effect, however, only about 2% of pending removal cases have actually been granted prosecutorial discretion. And those who have received prosecutorial discretion do not necessarily qualify for employment authorization.  So for many, while they may remain in the U.S., they cannot earn a living.

The latest policy announcement targets a more specific group of individuals, commonly known as “DREAMERs.”  These are individuals who would benefit from the DREAM Act, a piece of legislation which would provide a path to legal status for those who were brought to the United States as children and who were educated in our nation’s schools.  Although the DREAM Act initially enjoyed bi-partisan support, the contentious climate in Congress has prevented its passage.

Predictably, several prominent Republicans have already come out against this policy change, including a group of 20 Republican Senators, led by Senator Chuck Grassley, who sent a letter to Obama to challenge the legality of his use of prosecutorial discretion. Senator Lindsay Graham criticized the policy because it “avoids dealing with Congress.” Similarly, Rep. Lamar Smith, Chairman of the House Judiciary Committee, said, “President Obama’s decision to grant amnesty to potentially millions of illegal immigrants is a breach of faith with the American people” (Apparently, he misread the memo).  A pair of Arizona Representatives even went so far as to introduce two House bills to block the implementation of this new policy. Such actions and statements grossly mischaracterize the nature of the DHS prosecutorial discretion policy, and mislead the general public.

The new policy recognizes some important facts about immigration in a couple of ways. First, DHS has the funds to deport about 400,000 individuals per year. Given that there are around 12,000,000 undocumented individuals in the United States, it makes sense to prioritize who gets to stay and who must go.

Second, the individuals who are being considered for the new policy did not intentionally break the law and no control over their situation. These 800,000 individuals were brought to this country by their parents as minors; for many this is the only country they have ever known.  They graduated from school, many at the top of their class.  They have been productive members of our society.

Let’s get real; these individuals are de facto Americans, and kudos to the Obama administration for adopting a policy that will not target such individuals for deportation and will allow them to obtain work permits

It should be noted, however, that there still remain some questions about the implementation of this policy. Many government agencies, such as the DHS, USCIS and ICE, have released Frequently Asked Questions, practice advisories , and warnings to advise young immigrants who might qualify for deferred action and work permits as to how to proceed.

It is important to remember that this is a policy change, not a new law. It can be changed at any time, and could be eliminated if President Obama is defeated for re-election in November.

Also, the new policy has yet to be implemented. As yet, there is no way to apply for a work permit.

We promise to keep you informed as the effects of this new policy continue to unfold.

2. Supreme Court Strikes Down Parts of Arizona’s Immigration Law

Important parts of Arizona’s immigration law, SB 1070, authorizing state officers to make warrantless arrests based on immigration status, and making it a state crime to work without a permit, are invalid, the U.S. Supreme Court held on June 25.  Arizona cannot enforce these sections of the law, the Court said, because they are “pre-empted” by federal immigration laws. Pre-emption means that states may not enforce laws, in any respect, in subjects in which the federal government itself acts. With most of the challenged sections of the Arizona law, the Court said, the federal government either already entirely controls these areas of law, or Congress deliberately decided not to create rules to control that subject.

The Arizona law has served as a model for other state laws.   To the extent the provisions of the other states’ laws are similar, they are similarly pre-empted and may not be enforced.  The Court’s decision thus is a major blow to anti-immigrant and restrictionist state and local legislators, who sought to take immigration enforcement into their own hands.

The decision is being hailed as a victory for the Obama Administration’s Justice Department, which sued Arizona.  The federal government was successful in the lower courts, and the Supreme Court upheld most of an injunction halting enforcement by Arizona.

Specifically, the Arizona law made it a state misdemeanor crime for an “unauthorized” worker to apply for work, or to work as an employee or independent contractor (It is notable that the Court referred to “unauthorized workers” and not “illegal aliens,” as it has in past cases).  The Supreme Court noted that it is not a crime under federal law for people to work or to seek employment, but the Arizona law would make it a crime.  Congress made a deliberate choice not to impose criminal penalties, and making criminals of such workers, the Court said, would be inconsistent with federal policy and objectives.

Another section of the Arizona law would make it a state crime to not carry the alien registration document that federal law requires noncitizens to carry.  That is, the state would enforce this section of the federal law, with a state misdemeanor of its own.  The Court rejected Arizona’s argument that is was just doing the same thing the federal law allowed the federal government to do.   If Arizona were permitted to impose its own penalties, the Court said, every state could give itself independent authority to prosecute federal registration violations, which would reduce the federal government’s control over enforcement and detract from the “integrated scheme of regulation” of immigration Congress created.

The Court also held that absent any request, approval, or other instruction from the federal government, such as a 287(g) agreement, Arizona police could not arrest people because they may be deportable.  One section of SB 1070 attempted to provide officers the authority to decide that people should be detained for being “removable” – that is, for being out of immigration status or being undocumented.  This is even greater authority to arrest than Congress has given trained federal immigration officers, the Court said, adding: “This is not the system that Congress created.”  Allowing state officers to decide to arrest someone who the officer thinks is deportable violates the principle that the removal system is entrusted to the discretion of the federal government, the Court said.  State officers may participate in a joint task force with federal officers, and may respond to a request from the federal government or otherwise cooperate under federal law.  However, state officers are not authorized to take “unilateral state action” to detain people on this basis.

One other challenged section of the law is not pre-empted on its face but may be pre-empted, the Court said, depending upon how Arizona applies it in actuality.   That section of the law is known as 2(B).  It requires state officers to make a reasonable attempt to determine the immigration status of any person they stop, detain, or arrest on some other legitimate basis, if the officer has reasonable suspicion that the person is not a U.S. citizen and is not in the U.S. in an authorized status.  Section 2(B) also says that arresting officers must check the immigration status of people arrested before they are released.

The Court said that these provisions are not invalid on their face, largely because of three limits, built into the law, on how Arizona officials can enforce them.  First, a detainee who presents a valid Arizona driver’s license or similar identification is presumed to be lawfully here.  Second, officers “may not consider race, color or national origin” except to the extent permitted by the United States and Arizona Constitutions.  Third, Arizona officials must protect the civil rights of all persons.  With these limits, the Court said, the requirement to check the immigration status of someone arrested for other reasons, before that person is released, is not “facially” invalid.

The federal government successfully challenged the law – the district court issued an injunction – before the law went into effect, the Court said, so no one knows how Arizona officers and the courts will enforce it.  Thus, it is too early, the Court said, to argue that Arizona’s enforcement of section 2(B) will conflict with federal law.

The SB 1070 challengers had argued that requiring officers to check detainees’ immigration status before releasing them would result in people being locked up longer.   In language that may prove very helpful, the Court cautioned that “[d]etaining individuals solely to verify their immigration status would raise constitutional concerns.”  Detainees’ representatives and advocates against “immigration holds” or “detainers” may be able to use this Supreme Court warning where state or local officials refuse to release a detainee because of an “immigration hold.”

Copyright Nadine K. Wettstein

June 27, 2012

[Nadine Wettstein is an attorney in private practice, focuses on immigration appellate advocacy and case analysis]

nwettstein@nwettstein.com

3. Shusterman’s Upcoming Immigration Law Seminars

• Professionals in Human Resources Association
  Orange County, District 8
  Irvine, California
  July 19, 2012
  Topic: “What Employers Need to Know About US Immigration Laws”

• Professionals in Human Resources Association
  Annual Conference and Exposition
  Anaheim Convention Center, Anaheim, California
  August 27, 2012
  Topic: “Immigration: Avoiding the 7 Most Costly Mistakes”
  Please read the conference brochure for more information and click here to register online

• University of Texas School of Law
  Annual Conference on Immigration and Nationality Law
  Austin, Texas
  November 7-9, 2012
  Topic: “Finding What You Need: Practice Tips for Immigration Attorneys on How to Find Key Statutes, Forms, Regulations, Government Memoranda, Manuals, and More”

• Professionals in Human Resources Association
  Los Angeles County, District 19
  Palmdale, California
  November 14, 2012
  Topic: “What Employers Need to Know about US Immigration Laws”

• Channel Islands Public Management Association
  Human Resources Forum
  River Ridge Golf Club
  Oxnard, California
  January 16, 2013
  Topic: “Employer Compliance with I-9 Requirements”

4. CSPA: 9th Circuit Will Decide If Immigrant Families Will Be Reunited

On June 19, together with Attorney Nancy Miller, I appeared before an en banc panel (11 judges) of the U.S. Court of Appeals for the 9th Circuit to argue in favor of a provision of the Child Status Protection Act (CSPA) which Congress meant to allow nuclear families to remain together during what can be a long and tedious immigration process.  The video of the oral argument is available online.

This is a nationwide class action lawsuit which will affect tens of thousands of immigrant families from every country in the world, but especially those from countries with long backlogs in the family and employment preference categories like Mexico, the Philippines, India and China.

Before CSPA was enacted, whenever a child of intending immigrants turned 21 years of age, he was said to have “aged-out” and could no longer immigrate to the U.S. together with his parents, this despite the fact that he may have patiently stood in line with his parents for 10 or even 20+ years

In order to correct this unfair result and to avoid separating families, Congress passed CSPA in 2002.  One section of CSPA allows the child to subtract the time that the I-130 or I-140 was pending from his age when his priority date becomes current.  Say that the priority date becomes current on his 25th birthday, and the visa petition was pending for 5 years.  Under this formula, the child’s CSPA age is 25 minus 5, or 20 years old.  Thus, CSPA allows him to immigrate together with his parents.

Of course, no child has any control over how long the USCIS takes to approve his visa petition.  This is simply a matter of luck, the longer the better for purposes of this formula.  Using the example above, let’s say that the visa petition was pending only 1 year instead of 5.  In this example, his CSPA age would be 25 years minus 1, or 24 years old.  Thus, the child whose petition was pending 5 years can immigrate together with his parents while the child whose petition was only pending one year cannot.  This makes no sense.

Couldn’t the parents sponsor their son after they obtain permanent residence?  They could do so under the family-based 2B category, unmarried adult sons and daughters of lawful permanent residents.  But when you do the numbers, and look at how many people are waiting in the 2B line, you quickly learn that it would take a Filipino son over 32 years to join his parents in the U.S., and for Mexico (Are you ready for this?), over 115 years!

Fortunately, Congress recognized this problem when they drafted the law, and added a second part to the formula.  When a child’s age is determined to be over 21 years old in part one of the formula, his petition automatically converts to the 2B category, and he is allowed to “retain” the priority date of the original petition.  Therefore, if the original petition was submitted 20 years ago, the child gets credit for the time that he stood in line side-by-side with his parents, and may be able to immigrate either together with his parents or soon thereafter.

Unfortunately, the government ignores the plain language of CSPA, and insists that this constitutes “jumping to the front of the line”, conveniently ignoring the fact that the child has waited in line for many years.  And at the oral arguments, it was apparent that at least one or more of the judges may agree with the government’s position.  It is curious, however, that the two agency regulations that the government cites in its brief both give immigrants credit for the time that they stood in line in one category although they are immigrating in another category.  Apparently, the government believes that consistency is “the hobgoblin of small minds”

It may take a few weeks, or even a few months, for the Court to issue its decision.  And the losing side will be able to ask the Supreme Court to review the 9th Circuit’s decision.

Meanwhile, thousands of immigrant parents will remain separated from their sons and daughters

5. Success Story: Green Card Granted to Abandoned Spouse

This month’s success story tells of Martha (not her real name), who remained resilient and determined to make a life for herself in the U.S., despite the many obstacles she faced after she was abandoned by her first husband.

After moving to the U.S. on a K-1 visa, Martha married her U.S. citizen fiancé within the required 90 days and submitted an application for adjustment of status.

Martha’s troubles began when her husband took a trip out of the country and never returned, leaving her alone and pregnant with their son. Without him at her green card interview, the INS (now the USCIS) denied her application and placed her in deportation proceedings.  The INS officer told Martha he didn’t believe the baby was her husband’s. Martha obtained a divorce and hired an immigration attorney to help her stay in the country.

Later, Martha married to her second husband, also a U.S. citizen.  He submitted an immigrant petition (Form I-130) to sponsor her for a green card. However, under the immigration law, a person who enters the U.S. on a fiancé visa cannot obtain a green card through another spouse.  Therefore, the Immigration Judge found her ineligible for a green card and ordered her to leave the U.S. within 60 days.

Martha appealed this decision to the Board of Immigration Appeals (BIA) in 2003, but the Board dismissed the case.

Martha’s attorney then filed a petition for review this decision with the U.S. Court of Appeals for the Ninth Circuit. At this point, Martha hired our law firm to represent her. We asked the Ninth Circuit mediator to help us negotiate with the government attorney. The government attorney refused to negotiate, despite a recent decision of the U.S. Court of Appeals for the 9th Circuit (Choin v. Mukasey) which is in Martha’s favor.

Attorney Elif Keles worked with Martha on her case, reviewing evidence, writing briefs, and appearing at hearings.

Attorney Keles argued the case before the Court of Appeals and convinced the Judges to remand the case to the BIA to permit Martha to reapply for a green card. The Judges agreed that Martha had complied with all the requirements of the immigration law concerning fiancés and did exactly what Attorney Keles had requested.  The Board, in turn, remanded Martha’s case to the Immigration Judge who had ordered her to leave the U.S. many years before.

Attorney Keles submitted the appropriate paperwork and, this time, the Judge granted Martha’s application for adjustment of status. She received her green card this year and, thus, is permitted to live in the U.S. together with her husband and son.

Congratulations, Martha!

Read more of our Immigration Success Stories.

6. Immigration Trivia Quiz

Quiz Removed

7. Visa Bulletin for July 2012

The worldwide EB-2 cut-off date retrogresses to January 1, 2009, and the EB-2 category for India and China remains unavailable for the rest of the fiscal year which ends on October 1, 2012. However, in October, India’s and China’s cut off dates will move to either August or September 2007, and will be unlikely to move farther forward until the second half of the fiscal year. They will only move forward earlier if the visa Office believes that there will be insufficient demand for the rest of the year.

The rest of the family and employment-based categories move very slowly in July.

FAMILY CATEGORIES

Categories	Worldwide	China (PRC)	Mexico	Philippines
1st	07-08-05	07-08-05	6-08-93	07-15-97
2A	02-15-10	02-15-10	02-01-10	02-15-10
2B	05-01-04	05-01-04	01-01-92	12-22-01
3rd	04-15-02	04-15-02	1-22-93	7-22-92
4th	01-22-01	01-08-01	6-08-96	2-01-89

EMPLOYMENT CATEGORIES

Categories	Worldwide	China (PRC)	India	Mexico	Philippines
1st	Current	Current	Current	Current	Current
2nd	1-01-09	Unavailable	Unavailable	1-01-09	1-01-09
3rd	7-22-06	9-22-05	9-22-02	7-22-06	6-08-06
Unskilled	7-22-06	6-15-03	9-22-02	7-22-06	6-08-06
4th	Current	Current	Current	Current	Current
Religious	Current	Current	Current	Current	Current
5th	Current	Current	Current	Current	Current

In October 2012 (beginning of the 2013 fiscal year), the EB-2 cut-off dates for China-Mainland born and India, which are currently “unavailable,” will move to August or September 2007 (China may be slightly better). It is unlikely that the cut-off dates will move forward at all for the first two quarters of FY2013. If they do, it will only be if the Visa Office is convinced that there is insufficient demand for the rest of the year. The Department of State already has 17,000 EB-2 cases for natives of India, China, and worldwide with priority dates after January 1, 2009, pre-adjudicated. There will be a lot of cases queued up for adjudication in October 2012, and it will take some time to get through them.

EB-2 worldwide will be current in October 2012.

8. Immigration Government Processing Times

We link to the most recent immigration waiting times for each of the four USCIS Service Centers, the National Benefits Center and the Administrative Appeals Office. We also link to the processing times of all of the 83 USCIS District Offices and Sub-offices. We link to the Labor Department’s page entitled “Processing dates for labor certification applications”. Finally, we link to the State Department’s “Visa Wait Times” page.

Read more…

9. Ask Mr. Shusterman: Adjustment of Status vs. Immigrant Visa

When trying to obtain a green card, there are two options you can consider. You can apply for (1) Adjustment of Status inside the U.S. or you can apply for (2) an Immigrant Visa at a U.S. Consulate abroad. While both routes allow you to obtain a green card, there are some considerable differences.

Adjustment of Status

You can apply for Adjustment of Status if you are in the U.S. and meet certain requirements, most importantly that you entered the U.S. lawfully and never violated your immigration status. There are some exceptions, however, as it is still possible to be granted adjustment of status even if you violated your immigration status as long as you qualify under section 245(i) or 245(k) or are an immediate family member of a citizen.

If you are eligible for adjustment of status, you can avoid the time and expense of returning to your home country for consular processing. At the time of filing, you may also be able to apply for a temporary work permit (EAD) and a travel permit (Advance Parole).

USCIS usually interviews those with family-based cases. Upon the completion of a satisfactory interview, along with the fulfillment of all other requirements, you will then receive a written decision in the mail.  Those with employment-based are seldom interviewed, and will usually receive a response to their applications by mail.

Immigrant Visa

If you are not qualified for, or do not wish to apply for, Adjustment of Status or you are residing outside of the U.S., you may apply for an immigrant visa through a U.S. Consulate abroad, a procedure called priority dates and quotas of eligible persons for your home country, posted monthly by the State Department in the Visa Bulletin. However, if you are an immediate relative of a U.S. citizen—a spouse, child (unmarried and under the age of 21) or parent—you are exempt from these quotas, and can usually receive an immigrant visa readily upon completion of the application and interview process.

One drawback of applying for your visa through consular processing is that if you have accrued unlawful presence in the U.S., you may be barred from re-entering the U.S. If your “unlawful presence” was for more than 180 days, you will be barred from re-entering the U.S. for 3 years. If your “unlawful presence” was for over one year, you will be barred from re-entering the U.S. for 10 years. An important exception is that if you left the U.S. prior to September 27, 1997, you will not be affected by this law.

If you choose to obtain your immigrant visa through Consular Processing, your application will be reviewed at a consulate in where you reside or last resided. However,  a consulate in a third country may be used in special circumstances. The application process will initially take place through the National Visa Center (NVC). The government is currently transitioning to an online system, so if you are filing in Mexico, Canada, or in a handful of other countries, you must use the online system. For most countries, you must file a paper application along with original documents by mail to the NVC.  If your visa is available for processing, you will be asked to submit the necessary paperwork for your interview, and once the NVC has all the necessary documents, the consulate will schedule you for an interview. If you are granted an immigrant visa, the consular officer will give you a visa packet. Don’t open this packet, but give it to the Customs and Border Protection Officer when you arrive in the U.S. Within 30 days, you should receive your Green Card by mail.

Advice

Adjustment of status is generally faster and easier than consular processing, and allows you to remain in the U.S. during the application process. Thus, we usually recommend that our clients adjust their status in the U.S. The problem is that some persons are ineligible for adjustment of status, perhaps because of unlawful entry, visa overstay, or working without authorization. Sections 245(k) and 245(i) offer some exceptions to these rules and allow a qualified applicant to remain in the U.S. to adjust status regardless of their prior infractions.

10. Winner of our June 2012 Immigration Trivia Quiz!

Quiz Removed

Below is the message that we received from the winner:

Hello,

Below are the answers to the quiz

Passage a) is from “Krik? Krak!” by Edwidge Danticat, she was born in Haiti and is pictured in photo B)

Passage b) is from “The Brief and Wondrous Life of Oscar Wao” by Junot Diaz, he was born in Dominican Republic and is pictured in photo A)

Passage c) is from “Lucy” by Jamaica Kincaid, she was born in Antigua and Barbuda and is pictured in photo C)

My name is Misbah Keen, I am an immigrant (Green Card Holder) from India. I am a physician living and working in Seattle Washington. I solved the quiz by searching the web, I have been a subscriber for over 12 years through various email id’s. I probably will soon become eligible to apply for US citizenship and would love a consultation with Carl.

Thanks,
Misbah

Congratulations, Misbah!

Carl Shusterman
Certified Specialist in Immigration Law, State Bar of California
Former Immigration and Naturalization Service Trial Attorney
Served as Member of AILA Board of Governors (1988-97)
Law Offices of Carl Shusterman, 600 Wilshire Blvd., Suite 1550
Los Angeles, CA 90017, Phone: (213) 623-4592 x0, Fax: (213) 623-3720

“Let’s be clear this is not amnesty, this is not immunity, this is not a path to citizenship, it’s not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people. It is the right thing to do.”

– President Barack Obama

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